Citation Nr: 1331091 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 12-02 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from September 1943 to January 1947. He died in January 2000. The Appellant is the Veteran's surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board Remanded the appeal in April 2012. FINDINGS OF FACT 1. The Veteran died in January 2000 at the age of 73; according to the death certificate, the immediate cause of death was arteriosclerotic heart disease, and other significant conditions contributing to his death but not resulting in the underlying cause were acute ethanol intoxication, chronic alcohol abuse, acute benzodiazepine use, hypertension, and previous transient ischemic attacks. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. The medical evidence of record establishes that if the Veteran manifested an acquired psychiatric disorder, such disorder did not cause or aggravate the Veteran's alcohol abuse, but rather was the result of alcohol abuse, and service connection is precluded. 4. The preponderance of the evidence is against a finding that the Veteran incurred or aggravated a disorder in service, to include an acquired psychiatric disorder, which caused or contributed substantially or materially to his death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 112, 1113, 1310 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303, 3.307, 3.309, 3.311, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant contends that posttraumatic stress disorder, anxiety, and anger were incurred or aggravated in service and that the Veteran had alcohol issues secondary to the acquired psychiatric disorders resulting from his Navy service in World War II. VA's duties to the claimant The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Following the Appellant's submission of a September 2010 claim for service connection for cause of the Veteran's death, in a letter dated in January 2011, the RO notified the Appellant of the information necessary to substantiate a claim for DIC or pension, and of her and VA's respective obligations for obtaining specified different types of evidence. She was told that the evidence must show a causal relationship between the Veteran's death and an injury, disease or event in military service. She was advised of various types of lay and medical evidence that could substantiate her claim. She was not specifically informed that at the time of the Veteran's death, service connection was not in effect for any disability. See Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). She was provided with information regarding effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Following the Board's April 2012 Remand, the Appellant was specifically notified that service connection was not in effect for any disability at the time of the Veteran's death. She was notified of the evidence needed to substantiate a claim for service connection for the cause of death for which service connection was not in effect at the time of the Veteran's death. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The claim has been readjudicated following the required notice. Therefore, the notice defect has been cured. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect). The contentions and arguments provided by the Appellant since the initial notice in 2011 and since the July 2012 notice demonstrate that the Appellant understood what evidence was required to substantiate her claim for benefits for service connection based on the cause of the Veteran's death. The duty to notify has been met. Duty to assist Next, VA has a duty to assist the claimant in the development of the claim. This duty includes assisting in the procurement of service treatment records, other official service department records as necessary, pertinent treatment records, and providing an examination, when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made all reasonable efforts to assist the appellant in this claim. This includes substantially complying with the Board's April 2012 remand directing additional development. This development included obtaining and associating with the claims file voluminous and various records, including the service treatment records, the Veteran's death certificate, and post-service medical records, including private and VA clinical records. Notably, the VA employee responsible for copying available VA clinical records indicated that approximately 5,000 pages were copied. VA also obtained a December 2012 VA opinion to address the appellant's claim. As will be explained in more detail in the Board's decision of the merits of the appellant's claim below, this opinion is adequate as it included a review of the claims file and provides a complete rationale. Under the VCAA, this opinion was properly procured in accordance with the Board's April 2012 remand and the provisions of 38 U.S.C.A. § 5103A(a). See DeLaRosa v. Peake, 515 F. 3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). As the clinical records note, the Veteran underwent substance abuse detoxifications, was hospitalized, committed, resided in a long-term therapy program, or was followed in a substance abuse program such as Alcoholics Anonymous, as many as 80 times during his lifetime. Even though there are 10 volumes of clinical records associated with the claims file, it is likely that there are additional available records which have not been associated with the claims files. Nevertheless, the records of the more than 40 private and VA inpatient admissions and emergency department evaluations of records, together with the lengthy outpatient treatment records, are sufficient to establish the Veteran's symptoms and diagnoses. The records obtained provide information beginning in 1971, when the Veteran first sought treatment, through the evaluation in late January 2000 three days prior to the Veteran's death at home. The clinical records obtained are sufficiently comprehensive to demonstrate that there were no other providers who assigned markedly different diagnoses or established markedly different treatment plans. The Appellant does not contend that any other information is available that would assist in substantiating her claim. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Appellate review may proceed. Law and regulations The Appellant in this case is entitled to benefits based on the Veteran's death if a service-connected disability, or disability incurred in or aggravated by service, was the principal or a contributory cause of death, or substantially or materially contributed to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Benefits based on a Veteran's death may also be granted under other circumstances not applicable to this case, such as following the death of a Veteran who was totally disabled by a service-connected disability for 10 years prior to death. As the Veteran in this case had not been granted service connection for any disability during his lifetime, no further discussion of those provisions is required. Service connection may be granted for a disability due to a disease or injury which was incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be awarded for a "chronic" condition when a disease defined by statute or regulation as a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition. There is a presumption applicable for service connection for tinnitus, if due to an organic disease of the nervous system, and the provisions regarding presumptions have been considered in this decision. Service connection may be granted when a disease manifests itself during service (or during the presumptive period) but is not identified until later, there is a showing of continuity of symptomatology after discharge, and medical evidence relates the symptomatology to the Veteran's present condition. 38 C.F.R. § 3.303; see Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). A lay individual is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding Veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. Alternatively, if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). For purposes of Veterans' benefits, personality disorders are considered congenital or developmental defects and are therefore not considered "diseases or injuries" under the applicable legislation. 38 C.F.R. § 4.9. As such, personality disorders do not constitute a disability for VA compensation purposes. 38 C.F.R. §§ 3.303, 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection for disability resulting from a claimant's own drug or alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. However, service connection for compensation purposes is permitted for an organic alcohol or drug abuse disability acquired as secondary to a service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Compensation may be awarded only "where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Allen, 237 F. 3d at 1381 (Fed. Cir. 2001). Facts The Veteran served in the Navy during World War II. The Veteran's report of separation discloses that he served on several ships. The official records do not disclose what dates he was assigned to each ship. The Veteran was admitted for private hospitalization for alcohol detoxification in January 1971. During VA hospitalization for alcohol detoxification in August 1971 to September 1971, the Veteran reported service in the Pacific Theater from 1943 to 1946. He provided no details of that service. He reported that he began drinking at age 9, but did not start drinking heavily until age 21. During private hospitalization in January 1977, the Veteran reported that he was "locked in a boiler room" on a merchant ship or troop transport, was under constant pressure, and "in constant fear of being torpedoed," while stationed on ships in the Pacific Ocean during World War II. The Veteran reported that his ship was not damaged but a sister ship was sunk by torpedoes. During private hospitalization in March 1977, the Veteran stated he began drinking at age 17, when he joined the Navy, and reported that his longest period of sobriety since age 17 was a period of sea service. The only diagnosis assigned during the 1971 to 1977 hospitalizations was alcohol addiction. During VA hospitalization in July 1978 to August 1978, the Veteran reported that his Navy service in the South Pacific from 1943 to 1946 was "uneventful." He reported that he began drinking prior to his entry into service. Diagnoses of cerebellar syndrome, etiology due to alcohol toxicity, and organic brain syndrome, due to alcohol toxicity, and neurosis, severe, in a schizoid personality, were assigned. On VA examination conducted in 1983, the examiner noted that "[i]t is difficult to determine whether his depression is a result of the drinking or whether the drinking comes after the depression." However, the discharge summary discloses that no disorder other than alcohol addiction was assigned. In 1983, the Veteran was awarded non-service-connected disability pension. That award was terminated in 1992, when the family's income rose. Records associated with the claims file reflect numerous hospitalizations, primarily for acute injuries, during the period from 1983 to 1991. In May 1991, the Veteran was hospitalized for upper gastrointestinal tract bleeding. During that hospitalization, he underwent evaluation to determine if he had "any treatable psychiatric disorder, to include anxiety." The Veteran provided a history of drinking alcohol beginning at age 9, increasing while he was in the Navy. After evaluation, it was concluded that the Veteran's only diagnosis on Axis I was severe and chronic alcohol addiction. There was insufficient date to determine if there was a personality disorder on Axis II, the provider concluded. In May 1992, the Veteran was evaluated for purposes of civil commitment proceedings. The provider who conducted the examination concluded that the Veteran had at least 16 medical alcohol detoxification attempts, but was unable to maintain sobriety except in an institutional setting. The Veteran reported that he had PTSD since his service in the South Pacific in World War II, leading to alcoholism. The provider noted that the Veteran had provided a similar report previously, and that no diagnosis of PTSD was assigned at that time. The November 1992 records do not disclose assignment of any diagnosis other than alcohol abuse. On evaluation in September 1993, the provider performed a Minnesota Multiphasic Personality Inventory (MMPI), interviewed the Veteran, and reviewed the chart. The provider noted that the Veteran drank to calm his anxiety. The provider concluded that the Veteran had no disabling thought or mood disturbance, but did have a characterologic disorder in addition to alcohol addiction. The Veteran was admitted following an episode of confusion, memory changes, and behavior changes in early 1994. An organic mental disorder, not otherwise specified, rule out major depressive episode, rule out personality disorder, hepatic dysfunction, pancreatic dysfunction, alcohol liver disease, and change in mental status, cause undetermined, were the assigned diagnoses. In May 1996, a VA provider noted that the Veteran had undergone alcohol detoxification more than 80 times in programs at 20 different facilities; in contrast, another provided indicated in 1997 that the Veteran had undergone medical detoxification 20 times. He stated that the Veteran had extensive medical records reflecting gastrointestinal bleeding, coronary artery disease, hypertension, gastritis, and duodenitis. The provider stated that the Veteran could not be managed as an outpatient. The Veteran was involuntarily committed. In late 1996, the Veteran underwent endarterectomy for carotid stenosis. In October 1997, a provider noted that the Veteran, although committed, obtained access to alcohol when home on pass. Treatment records dated in 1998 and 1999 reflect that the Veteran, now past 70 years of age, had onset of additional medical problems. In late January 2000, the Veteran was admitted for epigastric pain and to rule out myocardial infarction. He had an episode of bloody emesis after he came to the emergency department. However, there was no ischemia shown on electrocardiogram. After completion of diagnostic studies, no disorder other than severe reflux gastritis and the known diagnosis of esophageal structure was found. The Veteran was discharged on January 28, 2000. He died at home three days later. In December 2012, the matter was referred to a VA psychologist for an opinion concerning the etiology of the Veteran's psychiatric symptoms/alcohol dependence; specifically, whether such symptomatology was related to service. The examiner indicated a comprehensive review of the claims file. The examiner provided an opinion that the stressors described by the Veteran during his lifetime, including his report that he was in constant fear of being torpedoed while at sea, was not sufficient to meet the criterion for assignment of a diagnosis of PTSD. The examiner further noted that the provider who recorded the Veteran's 1977 report that he feared enemy action did not link the reported history to the Veteran's symptoms of anxiety or depression. The examiner additionally noted that no other provider described such a link. The examiner stated that it was more than likely that the Veteran's psychiatric symptoms were the result of chronic heavy alcohol use and the family, physical, legal and occupational consequences. The examiner further concluded that it was less than likely that the Veteran's psychiatric disorder/symptoms, however diagnosed, were related to his military service. Analysis The death certificate states that the primary cause of the Veteran's death was arteriosclerotic heart disease. The Appellant has not submitted any evidence to the contrary. The medical evidence establishes that, during his lifetime, the Veteran had several transient ischemic attacks which required hospitalization. The Veteran underwent carotid endarterectomy to treat right carotid stenosis. The death certificate is the most persuasive evidence of record. That evidence indicates that the primary cause of the Veteran's death was arteriosclerotic heart disease. The Board notes that the Veteran did not seek service connection for arteriosclerotic heart disease during his lifetime, and the Appellant does not seek service connection for arteriosclerotic heart disease, nor does she contend that a psychiatric disorder which was incurred or aggravated during the Veteran's service caused or aggravated arteriosclerotic heart disease. Rather, the Appellant contends that the Veteran incurred an acquired psychiatric disorder during service, whether diagnosed as posttraumatic stress disorder, anxiety, or anger. The Appellant contends that an acquired psychiatric disorder incurred or aggravated during or as a result of the Veteran's service resulted in "alcohol issues." The Appellant contends that the acquired psychiatric disorder and the secondary alcoholism materially and substantially contributed to the Veteran's cause of death. In this case, no acquired psychiatric disorder was diagnosed during the Veteran's lifetime. The multiple examinations of record disclose, as noted above, the Veteran manifested symptoms of anxiety and depression and expressed anger, among other symptoms. A provider who treated the Veteran in 1983 noted that "[i]t is difficult to determine whether his depression is a result of the drinking or whether the drinking comes after the depression." However, no diagnosis other than alcohol abuse was assigned by that provider. In 1991, the treating provider concluded that the Veteran did not have a treatable psychiatric disorder, to include an anxiety disorder. A diagnosis of personality disorder was assigned. A personality disorder, for purposes of VA benefits, is not an acquired psychiatric disorder for which compensation may be granted. 38 C.F.R. §§ 3.303, 4.9, 4.127. In 1993, the Veteran was again afforded a psychiatric evaluation which included review of the records, interview with the Veteran, and objective psychometric testing. The examiner concluded that, although the Veteran reported that he drank to calm his anxiety, the Veteran did not meet the criteria for a diagnosis of a thought or mood disturbance. The examiner concluded that the Veteran did have a characterologic (personality) disorder in addition to alcohol addiction. The examiner further concluded that the Veteran did not have an acquired psychiatric disorder. This opinion is entirely unfavorable to the Appellant's claim for service connection for the cause of the Veteran's death, since service connection for an acquired psychiatric disorder cannot be granted, either or a direct or secondary basis (aggravation) if there is no medical diagnosis confirming that the Veteran had an acquired psychiatric disorder. Service connection for a personality disorder or for alcohol abuse, even if first manifested or aggravated in service, is precluded. The December 2012 VA opinion likewise concluded that the Veteran's depression, anxiety, and other psychiatric symptoms were due to his alcohol use. Service connection for a psychiatric disorder secondary to alcohol abuse is precluded. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001); VAOPGCPREC 7-99; VAOPGCPREC 2-98 (service connection for compensation purposes is permitted only for an organic alcohol or drug abuse disability acquired as secondary to a service-connected disability). The Appellant and her representative contend that the Veteran incurred an acquired psychiatric disorder in service due to stressors. The Board acknowledges that the Veteran reported, during his lifetime, that he was "locked in the boiler room" on board ship and was in constant fear of being torpedoed. The Veteran's report is assumed to be credible. However, the absence of a medical diagnosis of an acquired psychiatric disorder is evidence which is unfavorable to an award of service connection for such disorder, as incurred or aggravated by a stressor. Additionally, the Board notes that there is no evidence that the Appellant advised a provider who was treating the Veteran of her belief that such an incident occurred in service and was related to the Veteran's alcoholism. The voluminous evidence of the Veteran's numerous hospitalizations reflects that providers who treated the Veteran for alcohol abuse during his lifetime interviewed the Appellant on many occasions. The absence of any notation that the Appellant advised a treating provider of her belief that the Veteran's experiences during service contributed to a disorder that in turn, contributed to his death, decreases the credibility and probative value of the Appellant's current statements to that effect. In 1978, a diagnosis of neurosis, severe, in a schizoid personality, was assigned. However, no provider who treated the Veteran thereafter, from 1978 to January 2000, assigned that diagnosis. The one-time assignment of a diagnosis of an acquired psychiatric disorder does not warrant a grant of service connection, since the more numerous entries, from 1978 to January 2000, assign other diagnosis. In summary, the Veteran's death certificate states that he died of arteriosclerotic heart disease. The Appellant has not provided competent or credible lay or medical evidence that that disorder was incurred in or resulted from the Veteran's service. The death certificate also states that acute ethanol intoxication, chronic alcohol abuse, and acute benzodiazepine use contributed to the Veteran's death. However, service connection for acute ethanol intoxication or chronic alcohol and/or substance abuse is precluded by law, unless the alcohol and/or substance abuse are due to a service-connected disability. Thus, the Board finds the 2012 opinion more persuasive evidence of the appropriate diagnoses than the Appellant's lay statements about a possible link between the Veteran's service and an acquired psychiatric disorder, which was not diagnosed during the Veteran's extensive health care evaluations. The preponderance of the medical evidence is unfavorable to the Appellant's assertion that the Veteran incurred or aggravated an acquired psychiatric disorder is service. Rather, the medical evidence establishes that, to the extent that the Veteran manifested symptoms of anxiety and depression, those symptoms were due to the Veteran's alcohol use. This evidence is entirely unfavorable to the Appellant's claim, since service connection cannot be granted for alcohol abuse, even if incurred or aggravated in service. Although service connection may be granted for a an alcohol use disability secondary to a service-connected disability, where alcohol abuse is the primary disorder, service connection for an acquired psychiatric disorder secondary to alcohol abuse cannot be granted. Service connection is not in effect for the Veteran's primary cause of death, arteriosclerotic heart disease, and service connection cannot be granted for chronic alcohol abuse or for an acquired psychiatric disorder secondary to alcohol abuse. The preponderance of the evidence is against a finding that the Veteran incurred or aggravated a disorder in service, to include an acquired psychiatric disorder, which caused or contributed substantially or materially to his death. The claim for service connection for the cause of the Veteran's death must be denied. [Continued on Next Page] ORDER The claim for service connection for the cause of the Veteran's death is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs